Scottish Court of Session Decisions

At advising on 29th March 1940 the opinion of the Court was delivered by the Lord Justice-Clerk—

LORD JUSTICE-CLERK (Aitchison).—In this action the pursuers seek a declarator against five extern sisters of the convent of Poor Clares (Colettines), Mount Alvernia, Liberton, Edinburgh, that they have no longer a right of residence in the convent or in any part thereof, and ask the Court to decree their removal therefrom. There are two bodies of pursuers, first, the trustees who ex officio are heritably vested in the convent under a feu-charter dated in 1896 constituting the foundation. Of these pursuers Miss Susan Henry and Miss Emma Atherton are admittedly without title, their tenure of the offices of abbess and vicaress respectively of the convent having lapsed through failure of re-election in June 1937. The alternative branch of plea 1 for the defenders that these two pursuers have no title to sue will therefore fall to be sustained. The second body of pursuers comprise the Archbishop of the Roman Catholic Archdiocese of St Andrews and Edinburgh as Local Ordinary, designated as being charged with the duty of executing the judgments of the Sacred Congregation of Religious in Rome, and the said Miss Susan Henry and Miss Emma Atherton, designated as having as abbess and vicaress control over, and as representing, the said convent. This second instance is unnecessary, and, in the event of the defenders being bound to remove from the convent it will be sufficient for decree to go out in name of the first pursuers.

The convent at Mount Alvernia is a convent of nuns in the Roman Catholic Church of the religious Order of Poor Clares (Colettines), which Order was founded in France in the fifteenth century by Sister Colette. It is regulated by the Rule of St Clare, and the Constitutions for Poor Clare Nuns of the Reform of St Colette, and is subject, inter alia,to the canonical legislation concerning religious, and to statutes for extern sisters of monasteries of nuns, and is under the authority of the Sacred Congregation in Rome as the Supreme Court of the Roman Catholic Church, claiming final jurisdiction over all religious orders. Approved English translations of the rule and constitutions, the canonical legislation, and the statutes are produced. The defenders are extern sisters attached to the convent, and are under vows of poverty, chastity and obedience, but not of enclosure. In conformity with their form of life, on admission to the order, they renounce property and all worldly possessions, and undertake to appropriate nothing to themselves as an inviolable rule of their holy poverty. They occupy a division of the convent set apart from the enclosure, and are a channel of communication between the convent and the outside world. The defenders have been attached to, and lived in, the convent as extern sisters for many years. Sister Mary Joseph was professed in October 1900, and has resided there continuously. The residence of the other defenders except one has also been continuous.

The question between the parties turns upon whether the defenders have been validly deprived of their religious status as extern sisters of the convent by judgment of dismissal pronounced by the Sacred Congregation at Rome. The judgment founded on is set out in two documents addressed to the Local Ordinary, bearing to be issued under the hand of he secretary of the Sacred Congregation, dated 11th January and 5th April 1937, the first relating to Sister Mary Clare, Harris, and the second, described as a Rescript, relating to all five defenders. There is also a direction contained in a communication, dated 3rd December 1937, from the secretary to the Local Ordinary, granting a faculty to close the convent and to transfer the intern nuns to another convent in order to give effect to the sentence of dismissal. Translations of these documents are set out on record, but their accuracy is not admitted by the defenders.

In the defences as framed it appeared to be admitted that the original documents, which are in Latin, were written by the secretary of the Sacred Congregation. This admission may have been incautiously given, and the defenders now desire to withdraw it, and have proponed a minute of amendment. They are, in my opinion, entitled to have produced the documents themselves, and these, if not admitted, must be properly proved before the Court could accept them as the basis of any judgment to be pronounced. I am in favour of allowing the amendment.

The defenders claim that they have a right to continue to reside in the convent in virtue of their membership of the religious order or community of Poor Clares, which membership they assert has not been validly terminated in accordance with the law and constitution of the Roman Catholic Church. If it has been validly terminated, their status as extern sisters comes to an end, and all rights flowing from that status cease and determine including the right of residence. The Lord Ordinary has held that it is sufficiently instructed by the pleadings, and particularly by the admissions of the defenders, that there was ground, in the refusal of the defenders to renew their vows in the manner enjoined on them, that might warrant their dismissal from religion, and that they had not alleged relevant ground for reducing the judgment of dismissal. Accordingly, he granted decree of removal de plano. The question is whether the case can be disposed of without inquiry.

It was not contended by the pursuers that membership of a religious order, which carries with it as an inherent ingredient of that membership the right of residence in a religious house, was not a patrimonial interest that would be within the cognisance of the Courts of law. But the limits within which the Courts will interfere with the judgments of ecclesiastical bodies are strictly defined, and should not be incautiously extended. Where civil rights are concerned, appeal may be made to the Courts of law for their protection, or for some form of redress, but the mere fact that a civil right is affected by itself forms no justification for interference by the Court, for civil consequences may often result from decisions of ecclesiastical Courts in matters that lie properly within their own jurisdiction. Even in those cases in which the Court will interfere, the remedy to be afforded is not necessarily the restoration of the civil right, where there has been deprivation of it, or an interdict against interference where it is threatened. In many cases the only suitable remedy, owing to the intimate and special nature of the relationship arising from membership within a religious communion, may be an award of damages.

The right of the Courts, in suitable circumstances, to give a remedy for the violation, actual or threatened, of a patrimonial interest connected with a religious office was affirmed in the House of Lords in the case of Forbes v. Eden . That was a case brought by a clergyman of the Episcopal Church of Scotland against the members of the General Synod of the Church, concluding, inter alia, for the reduction of certain canons enacted by them which the pursuer alleged to be in violation of the previous canons in force when he was ordained, and injurious to him, as rendering him liable to deprivation of office for want of conformity thereto. The action also concluded for damages for injury done to the pursuer through his bishop refusing to license a curate, engaged by the pursuer, who would not subscribe the new canons. The action was dismissed upon the ground that the pursuer had not made a relevant averment of damage arising out of the violation of a civil right, sufficient to sustain the petitory conclusion:

In dismissing the action the Lord Chancellor (Lord Chelmsford) said (at p. 47):

"The appellant, in this case, has not been disturbed, either in his charge of the congregation at Burntisland, or in his legal position as a minister of the Scotch Episcopal Church. If he had been, though in this latter respect only, I should have considered with the Lord Justice-Clerk, that ‘the possession of a particular status, meaning by that term the capacity to perform certain functions, or to hold certain offices, is a thing which the law will recognise as a patrimonial interest, and that no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy.’"

And Lord Cranworth said (at p. 51):

"If connected with any office in a voluntary association there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house, or land, or chapel, or a school, then incidentally the Court may have imposed on it the duty of inquiring as to the regularity affecting the status in the society of any individual member of it."

But while this principle has been generally affirmed, and was undisputed by the pursuers, the intervention of the Court in disputes arising out of the decisions of religious associations, and affecting the relations between them and their members, has always been regarded as subject to certain very clearly defined limitations. The judicatories of religious bodies in Scotland are not in the position of ordinary civil judicatories whose decisions are reviewable by appeal or suspension. They have their own exclusive jurisdictions, and their decisions, within their own sphere and in matters pertaining to their own life and discipline, are final and binding upon their own members, and are not open to review unless in exceptional circumstances.

It is true that the judicatories of dissenting religious bodies are not Courts in the technical sense in which the judicatories of the National Church, which had their foundation in statute, have always been regarded as Courts of the realm, but, whatever contrary views may at one time have been entertained and expressed, it can scarcely now be doubted that they have a privative jurisdiction within the limits of their own constitution, in questions affecting their own members, who, by becoming members, have voluntarily undertaken to submit themselves to and abide by the constitution of the church to which they belong, although not entering into any express contract or covenant to do so. As it was put by Lord President M'Neill in M'Millan v. The Free Church (at p. 314):

"If their byelaws, or constitution, or rules of government, are not contrary to law—are not illegal in themselves—the Courts of law will not interfere between them and their members in the fair application and enforcement of such rules against parties who have chosen to enter the body, and to subject themselves to its laws."

But the Lord President goes on to add this important qualification:

"But if the office-bearers or the governing authorities of the body go altogether beyond the sphere of the constitution of the association—if they deal with a member in the way that they are not authorised by their constitution to deal with him—if they attempt to exercise over him a power or authority which he by becoming a member did not give them, and if by so acting they have done him injury, he will not be precluded from seeking redress nor will the Courts of law hold themselves precluded from giving him redress."

In the case of Skerret v.Oliver the right of the Courts to concern themselves with the resolutions of dissenting religious associations, where patrimonial interests are injuriously affected, was generally accepted, but subject, as I read the opinions, to recognition that there must be clear illegality, and not merely irregularity, in what is complained of. Lord M'Laren said (at p. 491):

"There is another element, namely, the qualified privilege which I think is accorded to the proceedings of ecclesiastical bodies professing to act judicially,—that their proceedings are protected from review in the same degree as the proceedings of arbiters are protected."

In Wight v. Presbytery of Dunkeld, in which suspension of a judgment of the Church of Scotland was sought in a matter of alleged scandalous conduct, the Court declined to interfere. The Lord Justice-Clerk (Moncreiff) said (at p. 925):

"Within their spiritual province the Church Courts are as supreme as we are within the civil; and as this is a matter relating to the discipline of the Church, and solely within the cognisance of the Church Courts, I think we have no power whatever to interfere."

And in Smith v. Galbraith Lord Justice-Clerk (Hope) said (at p. 678):

"In matters clearly connected with the discipline of the Relief Church, it cannot be thought that this Court can interfere. That point was ruled by Lord Braxfield's decision in the case of Auchincloss, confirmed by the Court."

The internal discipline of any such body is a matter of domestic concern, notwithstanding that status, or civil rights, may be involved, and it is only in extraordinary circumstances that the Courts will regard it as within their competence to intervene.

In what circumstances, then, will the Courts entertain actions arising out of the judgments of ecclesiastical bodies? Speaking generally, in either of two situations—(first) where the religious association through its agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (secondly) where, although acting within its constitution, the procedure of its judicial or quasi-judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of an ordinary civil tribunal, be sufficient to vitiate the proceedings. But a mere irregularity in procedure is not enough. It must be so fundamental an irregularity that it goes beyond a mere matter of procedure, and becomes something so prejudicial to a fair and impartial investigation of the question to be decided as to amount to a denial of natural justice, as, for example, if a conviction of an ecclesiastical offence were to take place without an accusation being made, or without allowing the person accused to be heard in his defence. In short, the irregularity alleged must not be simply a point of form, or a departure from prescribed regulation, but must go to the honesty and integrity of the proceedings complained of.

Thus, if there has been "such a gross and wilful violation of the rules of the body, in order to effect a purpose which could not be attained without it, as shall amount to an entire breaking up of the contract, on the faith of which any jurisdiction was committed to these Courts" there may be a point "not undeserving the consideration of the Court," per Lord Moncreiff (at p. 671) in Smith v. Galbraith . It is perhaps unnecessary that the violation should be wilful, but, at least, it must be fundamental. There must be some vital disconformity to the law and constitution of the religious association whose decision is being impugned, or some flagrant departure from elementary justice in the conduct of its proceedings, or some usurpation of jurisdiction, or, to put it generally, something against the essential faith of the contract by which the members of the body by entering into association have expressly or impliedly agreed that they shall be bound.

The question is—Do the facts alleged by the defenders in the present case satisfy this standard? Broadly speaking, the allegations are these: In the first place it is said that the investigation of the conduct of the defenders said to justify their dismissal was a mere pretence, carried out by a "pretended tribunal" arranged in order "to frame a report pre-judicial to the defenders and forward it to the Sacred Congregation of Religious in Rome." It is plain that what the pursuers describe as a tribunal was really an investigating committee, appointed by the Archbishop as Local Ordinary to inquire into the disobedience of the defenders. We were not referred to any rule or statute of the Roman Catholic Church which requires a tribunal of investigation to be constituted in any particular way. No doubt the Vicar-General and the other members of the tribunal were subordinates of the Local Ordinary holding office or faculties at his pleasure, but it has not been shown, nor is it averred, that their appointment as an investigating committee was in any way contrary to the law of the Church. If the report of the Archbishop to the Sacred Congregation, which alone has power to dismiss the defenders, was based on the report of this committee, the position may be anomalous, but, as Lord Neaves pointed out in Wight v. Presbytery of Dunkeld, "ecclesiastical proceedings are in many respects anomalous … all church Courts are more or less inquisitorial." Apart from criticism of the personnel of the tribunal, the defenders' averments that the proceedings were a pretence, carried through with the ulterior purpose of securing the dismissal of the defenders, are vague, unsatisfactory and wanting in adequate specification. If they had stood alone, I should have had hesitation in thinking that they were sufficient to justify inquiry.

The second ground alleged by the defenders as bearing upon the validity of their dismissal raises a much more serious issue. The defenders allege that they had no notice of any charges to be brought against them, apart from vague generalisations as to "disobedience" and "contumaciousness," that no specific accusations were ever made, and no formal charge preferred against them at any time. The Lord Ordinary in considering these averments has laid stress upon the word "formal," and has said that "it is impossible to read the defenders' averments as a whole without concluding that, on their own admissions, they knew the purpose of the inquiry by the ‘tribunal,’ and the substance of the subject-matter for inquiry—namely, their alleged disobedience in the culminating question of the renewal of their religious vows." The averments are over-elaborated, and it is not easy to bring them into clear focus, but I am not satisfied that the refusal to renew their vows was the real cause of the defenders' dismissal. The averment of the pursuers is "that the conduct of the defenders in fact afforded ample grounds" (for dismissal) "amounting to grave external motives with incorrigibility." But there is no statement as to what the grave external motives were, and the defenders aver that "even yet they are in ignorance of what the ground of complaint against them is." The refusal of the defenders to renew their vows, in the manner in which they were required to renew them, may have been a sufficient ground for their dismissal as being conduct in breach of their solemn obligation of obedience to the authority of the Church, but it does not appear upon any admission of the defenders, nor is it clear upon the averments of the pursuers themselves, that this disobedience was the true ground of their dismissal from religion.

The dismissal of sisters in perpetual vows is regulated by express enactment contained in the statutes for extern sisters promulgated by the authority of the Sacred Congregation in Rome. Statute 119 is as follows:—

"For the dismissal of a sister in perpetual vows grave external motives are required, together with incorrigibility, experience having proved that, after two admonitions, suitable corrections and penances having been given in vain, there is no hope of amendment. If, in the judgment of the abbess and in the judgment of her council, which must be made manifest by a majority of votes in a secret ballot, all this is clearly established, the Local Ordinary, having manifested to the sister the motives for her dismissal and given her full freedom to reply, and having faithfully recorded her reply in the Acts, shall transmit to the Sacred Congregation of Religious all the Acts and documents with a statement of his own judgment on the case, and that of the Regular Superior, if the monastery be subject to Regulars."

It is thus expressly prescribed by the constitution of the Church with reference to nuns of any order, that grave external motives are required for dismissal of a sister in perpetual vows, and it is expressly required that the motives for dismissal shall be manifested to the sister, who shall be given full freedom to reply.

It was thus essential that, after the abbess and her council had decided grave external motives to exist, these should be made manifest to the defenders, that is to say the actual motives upon which the dismissal was to proceed had to be made clear to the sisters concerned. It is averred by the defenders that this was not done. On a prima facie construction of statute 119, the duty of making manifest the motives would appear to rest on the Local Ordinary, which would seem to be a reasonable provision in a matter affecting a deprivation of status with the civil consequences which it must entail. I do not find in the pursuers' averments anything to indicate that in the present case this duty was discharged personally by the Local Ordinary. The practice of the Church may permit that it be regarded as a duty which is capable of being delegated by the Local Ordinary, and in fact it may have been so delegated in the present case. On the other hand, if the duty is incapable of delegation on the true meaning of the statute, and in conformity with the practice of the Church, then it would follow that this protective direction of the statute was not complied with, and, if this should happen to be so, that might amount to an irregularity of a kind sufficient to invalidate the decree of dismissal. I have come therefore to the conclusion that without evidence whether in fact grave external motives existed for the dismissal of the defenders, and were made manifest to them, and, if so, whether the practice of the Church did not require that they should have been made manifest by the Local Ordinary, it would be unsafe to decide upon the pleadings that the dismissal of the defenders was not invalidated by irregularity. The only satisfactory course is to allow inquiry.

There is a further ground to support inquiry. The Rescript of the Sacred Congregation, dated 5th April 1937, intimated that it was decided that—

"(2) the dismissal of the extern sister Clare Harris is to be carried out forthwith; "

"(3) the dismissal of the other extern sisters, unless they give signs of true amendment, is to be effected gradually."

The dismissal of sister Clare Harris was absolute, but the dismissal of the other extern sisters was conditional upon their not giving signs of true amendment. The terms of this conditional dismissal were at no time intimated to the extern sisters. The Rescript of 5th April 1937 was notified to sister Clare Harris on 24th May, but the first intimation of dismissal was made to the other extern sisters on 10th January 1938, when in a communication of that date from the Vicar-General and the Diocesan Notary they were informed that by decree of the Sacred Congregation dated 5th April 1937 it had been decerned that they be "dismissed from religion." They were not notified of the qualifying condition.

It was maintained by counsel for the pursuers that the effect of the condition "unless they gave signs of true amendment" was simply to leave it to the discretion of the ecclesiastical superiors to observe the conduct and behaviour of the extern sisters, and that there was no obligation to give them any intimation of the condition. It may be so, but I am not satisfied that it is so. Prima facie I should have thought that, when the Supreme Court of the Church had adjected to the dismissal a suspensive or resolutive condition, it would only have been reasonable to communicate that condition to the sisters concerned. If that was the intention of the direction of the Sacred Congregation, then it was not complied with, and I am not prepared to say, without inquiry, and without knowing what is the practice of the Church in a disciplinary matter of this kind, that there was not such a departure from regularity as might be fatal to the proceedings. In a matter so grave in its consequences to the defenders, affecting not only their status but also their livelihood, it is very necessary to avoid hasty conclusions that might result in irremediable injustice.

In allowing proof it is essential to make it plain that the Court will not act as a Court of review upon the merits of the dispute between the parties, in the sense of undertaking to determine whether there were sufficient grounds to justify the dismissal of the defenders. As already pointed out, discipline is a question for the Church. The inquiry must be directed to determine (1) whether the proceedings of dismissal were regular and in conformity with the law and constitution of the Roman Catholic Church, and, if there was irregularity, whether it was fundamental, and (2) whether, as the defenders allege, the whole proceedings were a sham and a pretence, without any true foundation, for securing the removal of the defenders from their office.

Before parting with the case, it is right to mention a contention that was put forward by the learned Dean of Faculty. He maintained that the Court ought not to entertain proceedings for setting aside the decree of dismissal, in respect that the effect of doing so would be to restore the defenders to their status as extern sisters. It was pressed upon us that, if they have been wrongly deprived of that status, the only appropriate remedy was an award of damages. The relationship between sisters, whether intern or extern, within a religious house or community is so intimate and special, and their temporal and spiritual activities are so intermingled, that there might be a case in which the Court would think it undesirable to compel that relationship to continue against the expressed will of the ecclesiastical authorities. But while that is so, it has to be borne in mind that the contention of the defenders is that they have been deprived of their status contrary to the law and constitution of the Church, and I think we are not at liberty to assume that, if the proceedings should turn out to be fundamentally irregular, the Church would not re-try the issue, with the result that the defenders might by the judgment of the Church itself retain their religious status. I think, therefore, it would be premature to sustain the argument. As the pursuers' pleadings are framed, the question is not raised whether, if the dismissal should turn out to be invalid, the only appropriate form of redress would be a claim of damages.

It must be pointed out that no averment is made regarding the regularity of the proceedings of the Sacred Congregation itself, and evidence attacking these proceedings will therefore be inadmissible. The Lord Ordinary has indicated an opinion that the reports made to the Sacred Congregation cannot be relevant to the questions here raised. I am note satisfied that this is so. Although the proceedings of the Sacred Congregation itself are not challenged, the reports made to it may be relevant as bearing upon the question whether the earlier proceedings were simply a pretence, as also upon the question whether charges were formulated, and the motives for dismissal made manifest to the defenders. I think, therefore, that the admissibility of such reports should remain open for the consideration of the Lord Ordinary, if and when a diligence for their recovery is asked.

As the defenders are seeking to set aside a decree of the Sacred Congregation ope exceptionis, it will be necessary that the action should be intimated to it, with a right to the Sacred Congregation to intervene in the process as minuters. Upon the whole matter, therefore, I move your Lordships that we open up the record and allow the amendment for the defenders and answers for the pursuers, and of new close the record; that we allow the reclaiming motion and recall the interlocutor of the Lord Ordinary; that we sustain the alternative branch of the defenders' first plea in law—no title to sue; that we repel the third plea in law for the defenders—that the action is incompetent; that we direct that the proceedings be intimated and the record as amended served with a copy of the interlocutor to be pronounced. upon the secretary of and as representing the Sacred Congregation of Religious at Rome, with right to the said Sacred Congregation, or the secretary on their behalf, to appear in the process by minute by the first sederunt day; that we allow parties before answer a proof of their respective averments on record limited under reference to the opinion of the Court; and that we remit to the Lord Ordinary to proceed as accords.